Monday, May 11, 2015

Reading list: entertainment franchises and Drassinower

Law and Creativity in the
Age of the Entertainment Franchise, ed. Kathy Bowrey & Michael
Handler: A collection of essays on the general theme, some much more specific
than others. The editors suggest that the things that the “entertainment
industry”
values don’t
map very well onto the law, but that industry members nonetheless
deploy/interact with the law to get what they want.I like their working definition of franchises:
franchises involve connected cultural content that some entity tries to exploit
and keep profitable over time.

David Lindsay contributes a pretty bad
defense of copyright in “Franchises, imaginary worlds,
authorship and fandom,” arguing that a hierarchy of ownership
is important to sustain the attractiveness of a cultural artifact, because
fandoms are like religions and religions need hierarchy—yes,
multiple interpretations are inevitable, but polysemous meaning needs a claim
of authoritativeness against which to define itself.(I was not aware of that, and nor I think
were the directors of many a Hamlet I have seen.Polysemous meaning may well need other
interpretations against which to define itself, but I see no requisite
connection to hierarchy.)In a world
where different kinds of content compete for limited attention, he argues, it’s
important to have a combination of “material that is familiar to an
audience—both
in terms of its content and its ‘authorial’
reputation—with
the potential for the generation of new meanings.”These universes must be owned to ensure their “authenticity
and integrity,”
without which fans and audiences won’t form an “ongoing
attachment.”(Citation needed.)Within those controlled boundaries, then,
there’s
room for experimentation/playing out the rules of the world. But fans need to be kept in line: “Just
as the ambiguous line between orthodoxy and heresy played a policing role in
the Middle Ages, uncertainty surrounding copyright
infringement is essential in constructing the terms of the relationship between
franchise owners and online communities.”(Or not: see, e.g., transformativeworks.org.I really wish people wouldn’t
treat copyright uncertainty as so much more uncertain than other legal
regimes.What does it take to avoid
driving a car negligently?)

The fact that franchise owners “naturally
have a strong interest in being a source (although not
necessarily the sole source) of canonical meaning, and in
being perceived by a fan community as the responsible (and potentially responsive)
guardians (or co-guardians) of canonical meaning” really says nothing about what the
law should give them.These claims for
the necessity of some permanent meaning in order to preserve a community around
a work have been made many times before; I’ve never been persuaded. Lindsay even discusses affirmational v. transformative fandom, then proceeds
to ignore transformative fandom by saying that fan communities “are
based upon defining themselves against ‘outsiders,’” and
therefore that fan communities do not protect the diversity of responses to
texts but rather foster exclusion and identity politics, based on claims about
their “depth
of knowledge (and loyalty to) canonical meaning” and “the enclosure of meaning.”He might feel excluded from my fandoms, but I
am sure that none of them are recognizable in this description.

Of course fan/producer relations aren’t as
simple as “the
contrast between franchise owners as over-zealous control freaks, and fans as
the virtuous creators of socially valuable meaning,” but
that’s
not where fan studies is (or really has been for a while, if it ever was--he misses the whole aspect of fan studies that is about recuperating fandom from the pathologization to which it was subject and to which Lindsay seems to be indifferent).A key issue is
exploitation, and Lindsay just valorizes it instead of
critiquing it or attempting to understand the many ways in which it might play
out.It’s not helpful to insist that “[i]n
a commercial culture, content is a commodity” and that economic law demands that
producers maximize profits—not only is it empirically false
(there’s
plenty of irrational behavior in the content sector, not to mention
noncommercial production), it’s normatively bankrupt.

What really galls me is the
evidence-free insistence that control is necessary to
preserve something called “authenticity,” as
if authenticity weren’t contingent and negotiable.Lindsay even seems to acknowledge this,
retreating to the assertion that struggles over
authenticity are necessary to a franchise—which gets us back to the religion
point.It may well be true that such
struggles are a part of a healthy belief system, but that doesn’t
mean that there needs to be any state-sponsored religion.When you have to analogize copyright law to
the Inquisition, you might be on the wrong side of the
argument.(Really!“[J]ust as when the uniform Christian
world view began to fray in the face of the proliferation of meanings spurred
by the Reformation the Church developed institutions such as the Inquisition to
police heretics, so, in the face of the proliferation of meanings through
online fan communities, the threat of copyright infringement
can be used by franchise owners to police meaning.”)I suppose it’s not surprising that the chapter
lacks any concrete examples of how he thinks this works.Lindsay refuses to define the extent of legal
“control” he
thinks is necessary—shall corporate owners wield the power
of excommunication? What does it even mean to require a “threat” to
hang over fan activities?Must that
threat ever be carried out?Enforcement
is absent in this account—though it definitely wasn’t in
his analogous Inquisition.

More gems: Hierarchy is important: “the
creative process, and the relationship between authors and audiences, is
necessarily asymmetrical …. [E]veryone may be a creator, but
that does not mean that everyone is equally creative.”(Straw men, anyone?)GRRM doesn’t like fan fiction, which means …
something.But Lindsay doesn’t
want to enter into “the increasingly tendentious debates
over the pros and cons of fan fiction.”Still, if we feel sympathy for an author who feels sad over the “bowdlerization” of
her creation by a corporate licensee, why wouldn’t we feel the same sympathy “when
it is digitally empowered fans that may be responsible for the bowdlerizing?”(I’d love to find this corner of fandom
that bowdlerizes.Of course, Congress has
legalized what CleanFlicks, which really did bowdlerize, sought to do, so again
I must wonder about relevance.)

Really, Lindsay just wants to be clear
that neither side, corporate or fandom, has “self-evidently better claims to higher
normative ground.”In this environment, it’s claims by individual authors like
GRRM for respect that might be the most desirable, because they can disrupt
both fandom and corporate constructions.Why this ability to intervene in debates over meaning requires the
threat of copyright infringement liability is an exercise left for the reader.

Johnson Okpaluba contributes a chapter
on digital sampling, arguing that licensing was prevalent in the US music
industry even before litigation established a rule of “get a
license or don’t
sample.”
It’s
true that it’s
hard/impossible now to make commercial sample-heavy albums like Paul’s
Boutique and It Takes a Nation of Millions to Hold Us Back, but those weren’t
ever the most common uses of sampling, Okpaluba argues, and those albums
shouldn’t
be seen as an artistic peak, since that’s just a subjective aesthetic
judgment.(Valuing the possibility of
variety isn’t
part of this analysis.)Producers
shifted to new sampling techniques and/or live instrumentation, so legal
constraints on sampling were productive of creativity.Joseph Fishman recently made the same
argument in Creating Around Copyright. I find it unpersuasive, since this thesis doesn’t
explain why the law is needed on top of artistic motives to experiment and
strike out in new directions, and the resulting legal suppression is not
neutral.

David Rolph’s
chapter on defamation law and celebrities has an interesting case study of how
filing a defamation case harmed the public image of a celebrity, turning him
from nice guy into perceived bully.Celebrity’s fluidity, Rolph suggests, may be
inconsistent with defamation law’s understanding of the stolidity of
reputation.

Other chapters cover the
Disneyfication of theater; Australian film and TV practices relating to reality
show (and other) concepts; the codification of flamenco music; arts festivals;
and carnivals as franchise opportunities for locations with communities with a
strong connection to the Caribbean.I
didn’t
know that you can buy a carnival-in-a-box package to promote tourism to your
city!

Abraham Drassinower, What’s
Wrong with Copying?: Really thought-provoking book that proceeds
from the thesis that copyright ought to be a true author’s
right: a right to participate in a conversation, which entails a like right of
others, thus creating its own inherent limits (specifically the idea/expression
distinction and transformative fair use).Also, because copyright rights involve communication, non-uses—including
database uses and private copying—are not infringements of the
legitimate copyright rights.I was about
half persuaded.He convincingly argues
that the “balance”
metaphor of copyright (balancing author and audience interests) doesn’t
justify copyright because it doesn’t tell us what is to be balanced.It makes copyright’s
lack of coverage for ideas and facts, as well as fair use, into empirical
questions when they shouldn’t be; balancing certainly can’t
tell you as a matter of first principle that copyright should protect
expression and only expression, or why copyright and patent are different. A
mousetrap may well involve creativity – just not the kind of creativity
copyright protects.

He makes a good point about defending
the public interest versus the public domain; instrumentalist accounts of
copyright focus on the former, when we should defend the latter. In Drassinower’s
view, only understanding copyright as dealing with communicative acts can
explain copyright: copyright is not a property right, but a right “inhering
in persons as speaking beings.”Because others need free access to ideas and transformative fair use, an
author’s
claim can’t
extend to those—though Drassinower doesn’t
fully convince me that he’s defended these needs (why is freedom
to copy ideas always necessary to the next author?).

One quibble comes from his use of
Borges’“Pierre
Menard, Author of the Quixote” to
defend the principle that independent creation can’t be
infringement, since Menard is definitely an author—but
Menard was also definitely not an independent creator in the sense of not
needing Cervantes as a but-for cause of his creation.I also thought his distinction between
copyright and trademark was unpersuasive, since he defines trademark as the
right to completely control the meaning of a mark as applied to a good or
service, and a trademark is not and should not be that!We’re allowed to talk about a Mickey
Mouse operation, or a Cadillac health plan.

As Drassinower recognizes, entailed in
his view is that the derivative works right is illegitimate, which would be a
big change—though
he does allow for room for infringement via substantial similarity, at least in
some cases.He also, in what I think is
a concession that’s inconsistent with his theory but he
thinks necessary for practical purposes, allows for the existence of a
translation right.Of course translation
also requires creative endeavor by the translator, but he argues that “[u]nlike
fan fiction, which uses the work of another in one’s
own, translation is not a speaking in one’s own words but a rendering of another’s
words in another language. Unauthorized translation is therefore infringing.” I’m not
sure I can go with him—why isn’t then a movie version a translation
of a book into a different medium and therefore infringing, justifying at least
part of the derivative works right?He
recognizes translation as authorial but also infringing; that opens the
possibility of other categories of authorial acts that are also infringing, and
now we’re
back to fighting over the scope of the derivative works right.

Drassinower is trenchant in his
criticism of US parochialism, which dismisses rights-based accounts of
copyright law out of hand.Low-protectionists worry that an author-centered account of copyright
would give authors too much control, but not all authorial demands would be
plausible in his account—respecting an author’s
autonomy doesn’t
require us to diminish the autonomy of others.Only republishing her words without also transforming them to be one’s own
expression, whether through commentary or otherwise, ought to count as
compelled speech (treating her like a puppet, working at the behest of others
without her consent) that she can suppress.

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I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.